DYZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 73
•24 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)DYZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 73
File number(s): BRG 885 of 2019 Judgment of: JUDGE JARRETT Date of judgment: 24 September 2021 Catchwords: PRACTICE AND PROCEDURE – Amendment – leave to amend Legislation: Migration Act 1958 (Cth) s 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Singh v Minister for Immigration [2019] FCCA 2337
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 9 November 2020 Date of hearing: 9 November 2020 Place: Brisbane Solicitor for the Applicant: Sydney West Legal and Migration Counsel for the First Respondent: Mr Hoyburg Solicitor for the First Respondent: Sparke Helmore ORDERS
BRG 885 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYZ19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
24 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The applicant have leave to read the affidavit of Noeline Dilhara Balasanthiran Harendran filed on 6 November, 2020 the affidavit of Joshua Chelliah filed on 8 November, 2020 and the affidavit of Daniel Robert Taylor filed on 6 November, 2020.
2.The applicant have leave to amend his Application for Review filed on 11 October, 2019 and for that purpose the applicant has leave to file and serve an amended Application for Review in the same form as annexure DRT1 to the affidavit of Daniel Robert Taylor filed on 6 November, 2020.
3.By 4:00pm on 2 November, 2021 the applicant shall file and serve written submissions in support of the amended application for review.
4.By 4:00pm on 9 November, 2021 the first respondent shall file and serve written submissions in respect of the first respondent’s response to the application for review.
5.The application be adjourned to 10:00am on 16 November, 2021 for final hearing in the Federal Circuit and Family Court of Australia (Division 2) sitting at Brisbane.
6.The applicant pay the first respondent’s costs thrown away by the adjournment of these proceedings on 9 April, 2020 to be agreed, and failing agreement to be assessed.
7.The applicant pay the first respondent’s costs of and incidental to the application in a case filed on 22 April, 2020, the amended application in a case filed on 8 November, 2020 and the first respondent’s costs thrown away by the amendments the subject of this order to be agreed, and failing agreement to be assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT:
By a further amended application in a case filed on 8 November, 2020 the applicant seeks leave to amend his principal originating process filed on 11 October, 2019. The principal application was before the Court on 20 November, 2019 when a registrar made programming orders for the preparation of the matter for a hearing on 9 April, 2020. The matter was listed before me for hearing on that day.
On 9 April, 2020 the applicant, for the first time, was represented by a solicitor. The applicant’s solicitor claimed to have only been recently instructed in the application. He had sent to my associate a proposed amended application but it was not at that point, filed. He initially indicated that he sought an adjournment so that he could properly prepare and present “these matters” to the Court. He suggested that the matters to be raised were “very straightforward”. He sought leave to amend the application for review but that application was opposed by the first respondent. The proposed amendment was to raise an issue that was said to have arisen out of the publication of certain case names on the Internet site maintained by the Federal Circuit Court of Australia. The ground the applicant wished to raise was explained in the following terms:
MR TAYLOR: Yes, the – so, the applicants of grounds include one that we’re obviously unaware – whether it – whether the applicant was previously named on the Commonwealth Courts website in connection with his pseudonym, but that would be a matter of evidence, and when they’re – we’re reliant upon the respondent to advise us whether or not his name was published in connection with his previous pseudonym, AKY 17. The second matter is that the date of arrival in Australia is published in the – in the court judgment, along with other identifying features for the applicant, and it would be a matter of evidence that we would be providing to the court that the date of arrival is a linking feature which enables the identification by the Sri Lankan authorities, of applicants – court – a linking applicant to their court pseudonyms and claims of race on the internet, because that information is provided in every case by the Australian Border Force upon removal, or the IOM upon an application for a travel document, to the Sri Lankan embassy.
So, when the Sri Lankan embassy collates that data, they can match the date of arrival in Australia, which, in effect, was 13 October 2012, from the travel document request with the court case on the internet, also 13 October 2012, and then undertake the relatively easy task of sifting out any different persons by virtue of different characteristics, for example, single or married status, religion, town of birth or place of origin. And, then, ..... identifying the person and their claims, and the applicant’s claims in this case are very serious, that he – which are published on the internet, quoted from the previous judgment:
As some inmates who were with me were killed in incarceration, I could be seen as a potential witness of such crimes. This is one of the basis on which I – on which I claim protection.
So, we are saying that because this predated its remittal back to the IAA, even though the applicant was not aware that this information had been published, it was linkable to him, we say that the IAA should consider it under, at a minimum, the complementary protection basis because the standard sort of complementary protection is an objective factual basis, whether the minster is satisfied that there is a real risk of harm to the process of removal or return to the country of origin, and for that reason, we say it’s not affected but 5AAA. The other basis for that would be that we would say that the minster is estopped from relying in a – on an objection or defence to say that it wasn’t specifically claimed when the matter went back to the second IAA, because we would say that the minster is estopped from that, having made a solemn promise that is – that the information of the applicant would not be revealed to the authorities in the country of origin.
So, we say that this type of issue is one that the court has not taken its attention to previously, and that’s why, in perhaps 5 or 10 of cases, dates of birth are published in cases, although not in this case. Significant identifying features are published in cases that we say contributed to the situation where this significant 91X breach has occurred, and we say that the inclusion of dates of arrival in…
The applicant solicitor explained that although he did not know whether the applicant was the subject of the “significant 91X breach” in the event that he was, he wished to raise a ground of review based upon that.
As it turned out, I adjourned the hearing of the application and made some directions for the applicant to file any amended application as he might be so advised. The application was adjourned to 15 May, 2020 for the hearing of any outstanding interlocutory applications and the making of further directions.
The applicant filed an application in a case seeking leave to amend his application for review on 22 April, 2020. The application came before me on 15 May, 2020. On that occasion the applicant sought leave to amend his initiating application in accordance with his application in a case. However, the terms of the proposed amendments bore no resemblance to the grounds that had been foreshadowed on 9 April, 2020. The application was opposed by the first respondent. I discussed the application with the legal representatives for each of the parties and I determined that I needed the assistance of written submissions in respect of the positions adopted by each of the parties. In the directions that ultimately issued, provision was made for either party to seek an oral hearing on the application for leave to amend in addition to the written submissions.
The applicant filed written submissions in support of his application for leave to amend 1 June, 2020. He asked for an oral hearing for the leave to amend. The respondent filed its written submissions in opposition to leave to amend on 5 June, 2020. The applicant filed submissions in reply on 12 June, 2020. He reiterated his request for an oral hearing of his application to amend. The first occasion that the business of the Court could accommodate that oral hearing was 9 November, 2020.
In his original application, the applicant specified the following grounds of review:
Ground 1
IAA made jurisdictional error by failing to apply the well-founded fear test.
Particulars
Authority failed to consider Applicant has been suspected of LTTE involvement and the question needed more exploration.
Ground 2
IAA made jurisdictional error by misapplying the complementary protection obligation.
Particulars
Authority failed to consider any questioning or interrogation may be attendant with mistreatment.
Ground 3
Authority did not take into consideration a relevant issue.
Particulars
Authority did not consider familial connections giving rise to imputed LTTE profile through Applicant's brother.
When the matter came before me on 9 November, 2020 the applicant, represented by the same legal representative, sought leave for a further proposed amendment to the application for review. He sought leave to file more evidence by which it was said it would become clear that the further proposed amendment was meritorious. The day before that hearing the applicant’s solicitor had lodged what was described as a further amended application in a case in which the applicant sought, amongst other orders, an order that he have leave to file and serve a second further amended application in the form of the document annexed to the Affidavit of Daniel Robert Taylor of 6 November, 2020. The amendments foreshadowed by that application were different to those set out in the proposed amendments sought in the application in a case filed on 22 April, 2020. The foreshadowed amendments are as follows:
1. The Authority’s task to review the decision under s.473CB of the Migration Act 1958 miscarried because the Authority applied the wrong test, or incorrectly applied the test of whether the new information provided by the applicant could constitute “credible personal information”; and/or unduly narrowed its consideration of whether there were "exceptional circumstances" for its consideration under s 473DD.
Particulars:
i.The Applicant submitted at CB235:
Specifically, [the applicant] clarifies that on one of the occasions on which he was arrested and detained, there were four other men who were also detained. During this period, detainees, including [the applicant], were tortured and beaten. Two of the men arrested at the same time as the Applicant were never released, and [the applicant] instructs that now, in 2019, their families and those in the village have confirmed that they remain missing.
ii.The new claim naturally breaks down into four integers:
Authority considered new information in paragraphs which may be broken down into four elements:
a.On one occasion when he was arrested and detained there were four other men who were also detained.
b.Arrested in the same event subsequent to which two of the arrestees permanently disappeared
c. The two men’s parents recently confirmed that the men remain missing.
d.That he would be perceived as a potential witness to the torture, or the circumstances of the men’s disappearance
e.He fears harm as being perceived to be a potential witness to torture, after which two of the detainees permanently disappeared.
iii.The Authority did not accurately identify and individually consider whether each integer of the new information could be credible personal information.
iv.The Authority applied the wrong test, or misapplied the test, in determining whether the new information could constitute credible personal information.
v.The Authority unduly narrowed its consideration of the term "exceptional circumstances" in s 473DD and failed to have regard to the full context of the "new information" provided by the Appellant to it in the Submission in the context of all claims made by the Appellant.
vi.The Authority failed to consider the new information against the tests in 473DD(b)(i) and 473DD(b)(ii) or otherwise misapplied the test.
2. The Authority’s task to review the decision under s.473CB of the Migration Act 1958 miscarried because the information about the other four persons with whom the applicant was arrested being tortured and two of them not being released was not new information, the information having been provided and basis of the claim having been raised in the protection visa interview.
3. Further or in the alternative, the decision was affected by an interpreting error in that the information by the applicant about the other four detainees being tortured was not interpreted.
Save for the matter particularised in ground 1. vi. the first respondent opposes the grant of leave to amend on the basis that there has been significant unexplained delay in seeking leave to amend; the proposed Further Amended Application lacks sufficient prospects of success to justify the grant of leave; and there would be prejudice to the first respondent in the form of costs thrown away if leave were to be granted, in circumstances where the evidence shows that the applicant lacks the financial means to satisfy a costs order in the first respondent’s favour.
THE BASIS FOR GRANTING LEAVE TO AMEND
The principles relevant to an application for leave to amend were summarised by Judge Lucev in Singh v Minister for Immigration [2019] FCCA 2337 at [6]-[9]. In particular, at paragraph [8] his Honour summarised the relevant factors to be considered in an application for leave to amend:
6. The Court has the power to allow amendments to applications pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). Rule 7.01 of the FCC Rules provides as follows:
(1) At any stage in a proceeding, the Court … may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court … thinks fit.
(2) Subject to rule 7.03, the Court … may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.
7. The Court notes:
a)in SZSRR v Minister for Immigration & Border Protection [2017] FCA 328 at [47]-[48] per Gleeson J the Federal Court observed as follows:
47. At the outset, it is relevant to note that the question of prospects of success is not the only relevant consideration on an application of the kind made to the FCCA judge. The application was analogous to an application for leave to amend a document. Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth) (“Circuit Court Rules”) empowers the FCCA to allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions that the Court thinks fit. Rule 1.06 of the Circuit Court Rules provides that the Court may in the interests of justice dispense with compliance with any of the Rules at any time. Thus, the FCCA has broad powers to permit a party to amend an application for review and even to permit a party to conduct its case without filing an amended document.
48. Generally speaking, the exercise of the FCCA’s powers requires that parties are given a proper opportunity to conduct their case. Leave to amend will be refused if it is obviously futile: cf. Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8]. In particular, leave to amend will be refused in respect of a pleading that was liable to be struck out: Research in Motion Ltd v Samsung Electronics Australia Pty Limited [2009] FCA 320; (2009) 176 FCR 66 (“Research in Motion”) at [21] to [22]; Wotton v State of Queensland [2015] FCA 910 at [59]. However, a just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding: cf. Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (“Aon”) at [98]; and
b)in ABX15 v Minister for Immigration & Anor [2015] FCCA 3003 (“ABX15”) at [20] per Judge Smith this Court held that:
…even if I accepted that the points sought to be raised by the amendment were either important or reasonably arguable (which I do not), I would refuse the application for leave to amend. I must use the power to allow an amendment in a way that enables the just, efficient and economical resolution of the proceedings and to avoid them being protracted. To exercise the power to allow an amendment in circumstances where there is no explanation given for a failure to comply with the Court’s directions and a very late application for amendment would, in my view, be an improper exercise of the power.
8. When determining whether the Court should exercise discretion pursuant to rr.7.01 and 7.03 of the FCC Rules to allow an amendment and leave to rely on the Proposed Amended Judicial Review Application, this Court should consider:
a)the nature and significance of the amendment to the applicant, and if it is in the interests of justice to grant leave to amend the application;
b)whether the party seeking the proposed amendment is not unnecessarily delaying proceedings, and whether an explanation has been given for any delay in making the amendment: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“Aon Risk”) at [102] per Gummow, Hayne, Crennan, Kiefel and Bell JJ;
c)whether the grounds for the proposed amendment would be “obviously futile”;
d)whether any injustice, with particular emphasis on the stage in which the proceedings are at, cannot be satisfactorily compensated for; and
e)the objectives of case management: Aon Risk at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
See: Pietrobon v BMD Constructions Pty Ltd & Ors [2017] FCCA 1730; Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924 at [27] per Judge Manousaridis; Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8] per Stone J; Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431 at [19] per Lucev FM.
The written submissions delivered for the applicant on 1 June, 2020 12 June, 2020 and 5 November, 2020 do not address any of the matters set out above other than whether the proposed amendments have any merit. In particular, there is little evidence to explain the delay in seeking the amendments on each occasion they have been sought.
There is an affidavit of the applicant’s current solicitor filed on 23 April, 2020 in which he explains that his client had little money, had only recently secured employment and had only recently been able to fund the preparation of an amended application. The solicitor also deposes to having requested a copy of the protection visa interview from the first respondent. The response from the solicitors of the first respondent was to point out that the recording of the protection visa interview was not relevant to the foreshadowed ground of review the applicant wished to rely upon and in any event it had been provided to his representatives in August, 2017. There is an affidavit from the applicant in which he deposes to thinking that he did not have a copy of the protection visa interview recording. He thought it was with his other documents “in Sydney” whereas he now lives in Brisbane. He gives no evidence about requesting the documents from his former representative, nor does his current solicitor. He deposes to coming across the protection visa interview recording in his papers recently. None of this evidence explains the delay in the applicant’s application for leave to amend.
The absence of an explanation for the way in which the applicant has conducted his case, sought the amendments in the way that he has and has on one occasion suggested certain amendments, only to abandon them in favour of different amendments smacks of delaying tactics and strategy. His original application for review was filed on 11 October, 2019. On 20 November, 2019, the applicant was ordered to file any amended application by 24 January, 2020. He filed none. An amended application was foreshadowed by the applicant’s legal representative for the first time on 8 April, 2020 the day before the principal application was listed for hearing. The amendments are very late in the context of the overall proceeding and the most recent form of the amendments is the fourth version of the grounds of review to be pursued by the applicant (inclusive of the amendments foreshadowed orally on 9 April, 2020). Each version or proposed version has been different to the last.
The applicant adduces no evidence explaining his delay in seeking representation for the hearing that was to take place on 9 April, 2020 his delay in seeking the amendments that he now seeks or why the amendments that he seeks change so substantially from time to time.
All of these matters weigh against the grant of the application.
It is necessary to consider the merits of the proposed amendments. I have set out the grounds of review that the applicant now wishes to pursue, earlier in these reasons.
The first proposed ground is to the effect that the second respondent failed to apply the correct test as to whether the new information provided by the applicant could constitute “credible personal information” which was capable of being believed, and thereby unduly narrowed its consideration of whether there were “exceptional circumstances” for its consideration under s 473DD of the Migration Act 1958 (Cth).
I think that this ground is not without some merit. The way in which the second respondent considered the applicant’s claim of new information, arguably applied the wrong test. The new information was summarised by the second respondent as follows (my emphasis):
9. In the 2017 and 2019 submissions the applicant states that he fears he could be seen as a potential witness to human rights abuses as some inmates who were with him when he was detained, were mistreated and are now declared missing, presumed dead. He also states that his brother "T" who was mistreated by authorities on suspicion of LTTE links and fled Sri Lanka has now been granted protection in Australia, and that his mother has recently told him the authorities still ask them about the applicant's whereabouts. The applicant said in his SHEV interview that he was taken by the Criminal Investigation Department KID) for investigation with four others. He also said in his visa application that he was "aware" of several incidents of harm to young Tamils in the area, that several had "also disappeared" and "it was clear" to "all of them" that the authorities were responsible. He also said he had "heard of several horrific incidents of harm and torture that other Tamil males have experiences at the hands of the CID and "several friends" who reported to, and were targeted by, the CID "disappeared and remain missing to this day". However, he had not claimed before the delegate's decision was made to have personally witnessed such abuses while in detention and I consider this aspect, new information, as well as the statements that the two men remain missing and are presumed dead in 2019, that the authorities continue to look for the applicant in 2019 and his brother has been granted asylum in Australia (he told the delegate his brother had fled Sri Lanka and was in Australia but not that he had been granted asylum).
The second respondent then considered whether exceptional circumstances existed to justify considering this information. It said (my emphasis):
10. The information is brief and generalised with no pertinent detail, including dates, or supporting information including in relation to the applicant's brother's grant of asylum in Australia, despite the evidence before me indicating they live together in Australia. In the SHEV interview the applicant also said that his brother's story was different and I do not consider his claimed grant of asylum in the absence of further detail, material to the applicant's central claims. The applicant was represented at the visa application and SHEV interview stages. His and his brother's claimed mistreatment by Sri Lankan authorities was squarely at issue in the SHEV interview but he did not claim the authorities continued to look for him in his visa application or 2017 submission. I also find his brief explanation for the late provision of this information, namely that the two men's families have now "confirmed that they remain missing and he can report the authorities are still looking for him in 2019 "after having spoken to his mother this week" unpersuasive. This is particularly so, given the applicant has previously said he speaks with his family weekly, and there is nothing before me to indicate otherwise. I do not accept information in relation to his witnessing human rights abuses and the authorities continuing to look for him, as credible in the circumstances. I am not satisfied exceptional circumstances exist to justify considering the information.
It can be seen that the second respondent determined that the applicant’s claim that he had been given this information by his mother was unpersuasive and, in circumstances where the applicant had said that he speaks to his family weekly, the second respondent did not accept as credible his assertion of receiving this information from his mother. The applicant argues that this was the wrong test. He argues that when the second respondent was considering whether there were exceptional circumstances which existed to justify considering new information, the only requirement was to consider whether the new information was information which was open to be, or capable of being, accepted by the second respondent as truthful, or genuine.
The applicant points to CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 where the court said:
41. In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42. The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria
It is arguable that the second respondent fell into the error identified in CSR16.
In my view, the first proposed ground of the amended application raises sufficiently meritorious argument to permit the amendment to proceed.
The second ground in the proposed amendments is, in my view, an alternative to the first. That is to say that the matters which the second respondent identified as new information were not in fact new information because the applicant had mentioned those matters in his protection visa interview. The transcripts evidenced by the applicant demonstrate that, arguably, there may well have been difficulties with the interpretation of the protection visa interview and that he did raise those matters, those matters were not interpreted into English and recorded in the interview in the English language. Grounds two and three raise arguable grounds of review on the evidence before me.
I do not consider that to grant leave to amend the initiating application the way in which the applicant seeks would be an exercise in futility. The amendments, in my view, raise issues which, if determined in favour of the applicant, would mean that the second respondent’s decision would be set aside and the matter considered again.
Notwithstanding the delays in this matter in seeking to amend his application, the circumstances in which the applications for leave to amend been made and the absence of any adequate explanation for those delays, I have concluded that the justice of the case demands that the applicant be given leave to amend. The arguments he wishes to raise, if successful, would highlight fundamental shortcomings in the second respondent’s decision-making process. I note that the proposed amendment relying upon AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 is not opposed.
I have regard to the first respondent’s submissions that an order for costs may not be a salve for the prejudice that the first respondent would suffer if the requested leave was granted, but leave to amend should be granted on terms as to costs nonetheless.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Judge Jarrett. Associate:
Dated: 24 September 2021
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